Hambru v Baur [2007] PGNC 97; N3193 (24 September 2007)

N3193

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 153 OF 2006

BETWEEN:

JUBILEE HAMBRU
-Plaintiff-

AND:

MICHAEL BAUR
-First Defendant-

AND:

SAM INGUBA, COMMISSIONER FOR
ROYAL PAPUA NEW GUINEA
CONSTABULARY
-Second Defendant-

AND:

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
-Third Defendant-

Waigani: Gavara-Nanu, J.
2007: 19 &21 February,
: 24 September

PRACTICE AND PROCEDURE - Pleadings – Failure to plead false imprisonment –Whether arrest and detention unlawful – Damages - Failure to properly plead particulars.

DAMAGES - Malicious prosecution – "Malice" may be inferred from facts – Onus on the plaintiff to show absence of reasonable and probable cause – Abuse of process – Gross negligence – Delay - Damages.

DAMAGES – Consequential loss – Plaintiff arrested and charged with robbery by the police –Custody – Committal proceedings – Case dismissed – Plaintiff terminated from his employment by his employer – Whether plaintiff can claim loss of wages against the police and the State as a consequential loss - Remoteness of damages.

PRACTICE AND PROCEDURE – Default judgment – Assessment of damages – Liability not an issue – Onus on the plaintiff to prove damages.

Facts

The plaintiff was employed by Air Niugini as a cargo officer on 26 November, 2001 on a net salary of K481.81 per fortnight. On 11 August, 2003, he was arrested and charged with armed robbery by the police. It was alleged that he in company with others stole six boxes of vanilla beans valued at 350,000.00 US Dollars (K1,261,261.26), which had arrived at the Jackson’s airport, Port Moresby, from Wewak. Plaintiff was detained at the Boroko Police station following his arrest. On 12 August, 2006, he was taken to Bomana CIS where he was remanded. While in remand, he appeared seventeen times at the Waigani Committal Court. He was released on K2, 000.00 cash bail on 15 February, 2004. After his release on bail, he appeared five more times at the Waigani Committal Court. In those twenty two appearances at the Waigani Committal Court, the police were not ready. The plaintiff’s case was eventually dismissed on 26 February, 2004, for lack of evidence. The plaintiff, who was on suspension from his employment then went and saw Air Niugini management to have his suspension lifted but was refused. He was terminated from his employment by Air Niugini on 28 December, 2004.

Held

1. Plaintiff cannot claim damages for unlawful arrest and detention when he has failed to properly plead particulars and where facts do not disclose false imprisonment.

2. "Malice" in a claim for malicious prosecution may be inferred from the facts.

3. Plaintiff who was terminated from his employment by his employer after he was arrested and charged for an offence by the police and dealt with under the due process of the law cannot claim loss of wages as a consequential loss against the police and the State. Such claim is too remote. In this regard, this case is distinguishable from Alex and Maree Latham v. Henry Peni [1977] PNGLR 435 and Lucy v. Commonwealth [1923] HCA 32; (1923) 33 C. L. R. 229. Principles applied in Enga Enterprises Pty Ltd v. Danny Porakali [1995] PNGLR 30 and Kinsim Buisness Group Inc. v. Joseph Hompwafi [1997] PNGLR 111 applied.

4. In a case for assessment of damages where liability is not an issue after the plaintiff has obtained a default judgment, the plaintiff still has the onus to prove his claims on the balance of probabilities. Damages cannot be awarded as a matter of course even where plaintiff’s evidence is unchallenged or uncontroverted.

Cases Cited

Angogo Gamias v. Ben Anton & Ors N1502
Alex & Marrie Latham v. Henry Peni [1977] PNGLR 435
Cory v. Blyth [1976] PNGLR 463
David Wari Kofowei v Augustine Siviri & Ors [1983] PNGLR 449
Enga Enterprises Pty Ltd v. Danny Porakali [1995] PNGLR 30
John Savarao v. Lau Soran & Ors [1997] PNGLR 14
Kinsim Buisness Group Inc. v. Joseph Hompwafi [1997] PNGLR 111
Lukas Roika v Peter Wama, Donnie Owaie & The State N1373
Mahera Ignote v Abraham Hualupmomi & The State [1996] PNGLR 308
Mary McChrohan v. Bechtel Pacific Corporation Ltd & Ors [1976] PNGLR 355
Milan Chapek v. The Yacht "Freja" No. 2 [1980] PNGLR 161
MVIT v. Pupune [1993] PNGLR 370
NCDIC v. Crusoe Pty Ltd [1993] PNGLR 153
Papua New Guinea Banking Corporation v Jeff Tole SC 694
Pawa Kombea v Semal Peke [1994] PNGLR 572
Pius Nui v. Senior Sergant Mas Tanda & Ors N2765
Rahonamo v. Enai (re Hitau) [1971-72] PNGLR 58
Regina v Kakius Isiura [1964] PNGLR 84
Ronald Alexander McKenzie v. The State SC596
Teine Molomb v The Independent State of Papua New Guinea N2861
The State v Songke Mai & Gai Avi [1988-89] PNGLR 556
Trevor Yasken & Ors v. Walyia Abilo & Ors N3108

Overseas Cases Cited

Phillips v. Phillips [1878] UKLawRpKQB 96; [1878] 4 Q.B.D. 127
Lucy v Commonwealth [1923] HCA 32; (1923) 33 C.L.R. 229

Counsel

Patricia Sawanga, for the plaintiff
No Appearance, for the defendants

1. Gavara-Nanu J: The plaintiff is claiming general, special and exemplary damages against the defendants for unlawful arrest and detention and malicious prosecution. The plaintiff’s claims arise out of his arrest by the police on 11 August, 2003, upon an allegation that he on 24 June, 2003, while being employed by Air Nuigini as a cargo officer, at Jacksons airport cargo terminal in Port Moresby, armed himself with a dangerous weapon, namely a .38 caliber pistol and stole six boxes of vanilla beans, valued at 350,00.00 US Dollars (K1,261,261. 26), which had arrived as cargo from Wewak.

Factual background

2. The plaintiff’s affidavit sworn on 26 October, 2006 gives the background of the case, which is this: He commenced employment with Air Nuigini on 26 November 2001, as a cargo officer at its airfreight cargo department at Jacksons airport cargo terminal in Port Moresby. He was employed on a net salary of K481.81 per fortnight. He continued with that employment until 11 August 2003, when he was arrested and charged by the police for being allegedly involved in an armed robbery as alluded to earlier. He was detained at the Boroko Police station after his arrest, and on 12 August 2003, he was taken to Bomana CIS where he was remanded in custody for eighteen weeks until his release by the Waigani Committal Court on 15 February, 2004, on a cash bail of K2, 000.00.

3. During his remand at Bomana CIS, he appeared seventeen times at Waigani Committal Court. His case was adjourned on each of those seventeen times at the request of the police because they were not ready with the case.

4. After his release on bail on 15 February, 2004, he appeared five more times at Waigani Committal Court. The police were again not ready with the case in each of those times. In his last appearance on 26 February 2004, the police were still not ready with the case; thus, upon an application being made by him, his case was dismissed.

5. After the dismissal of his case by Waigani Committal Court, the plaintiff went back to Air Niugini and briefed its Human Resources Management Division and sought to have his suspension, which was current at the time to be lifted, and asked that he be reinstated to his former job. He was advised that any decision to have him reinstated would remain deferred and was told to keep on checking with them. He continued to check with Air Nuigini on his reinstatement until 21 December 2004, when he was told that his services were no longer required and that his final entitlements would be processed and paid to him. He was terminated on 28 December, 2004. He later approached the National Airlines Employees Association to seek its support for his reinstatement. As a result, on 11 July, 2005, the National Airlines Employees Association wrote to Air Nuigini seeking his reinstatement to his former job. That was also unsuccessful.

Plaintiff’s case

6. The plaintiff claims damages against the defendant for unlawful arrest and detention and malicious prosecution. He claims that his arrest, detention and prosecution were malicious and without any reasonable or probable cause.

7. The plaintiff obtained a default judgment against the defendants on 17 August, 2006, thus, the matter is before me only for assessment of damages. It should be noted that the defendants did not file a Notice of Intention to Defend and Defence and made no appearance at the trial. This action was therefore undefended. Consequently, facts deposed in the plaintiff’s supporting affidavit remain unchallenged and so are all the arguments advanced by the plaintiff. However, that is not to say that the plaintiff should obtain judgment for damages as a matter of course. He still carries the onus to prove his claims on the balance of probabilities. See, for instance, Angogo Gamias v. Ben Anton & Ors N1502.

8. The plaintiff has cited a number of cases on which he places reliance, including Teine Molomb v The Independent State of Papua New Guinea N2861. Using those cases, he has put his claims in general damages for malicious prosecution at K18, 000.00; for distress and frustration at K1, 000.00; for consequential loss (loss of wages from the date of his termination to the date of trial) at K22,431.24 and for exemplary damages at K10,000.00. He also claims costs and interest at eight percent.

9. The plaintiff makes his claims under three heads; general, special and exemplary damages. I will address the claims in that order.

(1) General damages

10. Under this head, the plaintiff claims damages for unlawful arrest and detention and malicious prosecution.

11. I propose to first discuss arrest and detention then malicious prosecution. However, although arrest and detention are discussed first, they raise different issues in themselves, therefore, they will be addressed separately. See, The State v. Songke Mai & Gai Avi [1988] PNGLR 56 and Ronald Alexander McKenzie v. The State SC 596.

12. I will first discuss whether the plaintiff’s arrest on 11 August, 2003, was lawful or not. The onus is on the plaintiff to prove his claim as he is the one asserting the claim. This issue in my view hinges on the power of the police to arrest the plaintiff on the day in question.

13. The power of the police to make arrests is found in s. 3 of the Arrest Act, 1977, which provides:

3. Arrest without warrant by a policeman.
   

A policeman may, without warrant, arrest a person whom he believes on reasonable grounds –

(a) is about to commit; or

(b) is committing; or

(c) has committed,

an offence.

14. It is to be noted that s. 42 (3) of the Constitution recognizes and gives effect to the power of the police to arrest under s. 3 of the Arrest Act, 1977.

15. Section 42 (3) of the Constitution provides:

(3) A person who is arrested or detained –

• (a) for the purpose of being brought before a court in the execution of an order of a court; or
  
• (b) upon reasonable suspicion of his having committed, or being about to commit, an offence, shall, unless he is released, be brought without delay before a court or a judicial officer and, in a case referred to in paragraph (b), shall not be further held in custody in connexion with the offence except by order of a court or judicial officer.
  

16. The plaintiff purports to plead the particulars of unlawful arrest, detention and malicious prosecution in paragraph 10 of the Statement of Claim. The paragraph states:

10. At all material times, the plaintiff’s arrest, detention and prosecution were malicious and/ or without any reasonable or probable cause and were unlawful.
    

17. Particulars of unlawful arrest and detention and malicious prosecution.

(1) the police were not in hot pursuit when they arrested and charged the plaintiff; or

(2) the plaintiff was never arrested at the scene of the crime or in possession of stolen items; or

(3) the plaintiff pleaded with the police when they questioned him that he was innocent and at the time he was at another place with his friend(s) and that was confirmed by an independent witness yet the police arrested, charged and detained him; or

(4) failure to complete information and or police file and have the plaintiff’s case dealt with within a reasonable time, thus breaching his right under the Constitution; or

(5) there was no direct evidence connecting him to the alleged robbery, there and no positive identification of him by an independent witness and he has no motive to commit the crime as he already has a well paid and a good job.

(6) there was no reasonable or probable cause for his arrest and detention.

18. But none of these particulars are in my opinion materially relevant to the issue of whether the plaintiff’s arrest was lawful, in that, they do not constitute material facts upon which the plaintiff can rely to prove his claim that his arrest was unlawful. They are in my opinion misconceived as far as this issue is concerned. Even if they bear some relevance to the issue, they do not sufficiently plead the issue as I elaborate below. See, Phillips v. Phillips [1878] UKLawRpKQB 96; (1878) 4 Q.B.D. 127, where Brett. L. J at 133 said:

"If parties were held strictly to their pleadings under the present system they ought not to be allowed to prove at the trial...any fact which is not stated in the pleadings. Therefore, again, in their pleadings they ought to state every fact upon which they must rely to make out their right or claim".

19. See, also Mary McCrohan v. Bechtel Pacific Corporation Ltd & Ors [1976] PNGLR 355.

20. It is common knowledge that the police would have arrested the plaintiff following normal police investigations and they may have relied on evidence or information they obtained from sources other than those stated by the plaintiff in paragraph 10 of the Statement of Claim. For instance, they may have obtained information from their informers about plaintiff’s involvement in the robbery or his accomplices may have told the police that he was involved in the robbery. It may well be that his involvement in the robbery was in ways other than physical involvement such as providing the information required for his accomplices to execute the robbery; for example, the arrival time of the flight carrying the vanilla beans from Wewak or that he planned the robbery for others to execute. In such circumstances, he did not have to be physically involved. These are some of the ways the police may have gathered their information and formed the belief that plaintiff did commit the offence, hence his arrest.

21. In any case, looking at the particulars pleaded in paragraph 10 of the Statement of Claim, only paragraphs 10 (1), (2) and (3) appear to plead facts, but those facts as I said are not materially relevant to the issue or are insufficient to constitute material facts and therefore the plaintiff cannot rely on them to prove his claim for unlawful arrest. See, Cory v. Blyth [1976] PNGLR 463. As to paragraphs 10 (4), (5) and (6), they plead evidence. The upshot is, whole of paragraph 10 offends against Order 8 r 8 (1) of the National Court Rules, which provides:

8. Facts, not evidence
   

(1) A pleading of a party shall contain only a statement in a summary form of the material facts on which he relies, but not the evidence by which those facts are to be proved.

22. Moreover, there is nothing in the particulars pleaded to indicate that plaintiff’s arrest was not done according to law so as to render his arrest unlawful. For instance, the requirements of the Arrest Act, 1977, not being complied with or that his arrest was done in breach of the relevant Constitutional provisions, such as s.37 (3), (4) (b), s.42 (2) and (3). See, David Wari Kofowei v. Augustine Siviri & Ors [1983] PNGLR 449 and The Sate v. SongKe Mai & Gai Avi (supra).

23. The plaintiff has also claimed that his constitutional rights were breached, but he has failed to state precisely the types of constitutional rights that were breached. See, MVIT v. Pupune [1993] PNGLR 370. It is relevant to note that whilst s.3 of the Arrest Act, 1977, empowers the police to arrest a person whom they believe on "reasonable grounds" is about to commit; or is committing; or had committed an offence; s. 42 (3) (b) of the Constitution authorizes arrest upon "reasonable suspicion". Thus the Constitution which is the supreme law, broadens the power of the police to arrest a person on reasonable suspicion that he is about to commit; or is committing or has committed an offence.

24. It follows that plaintiff’s claim that his arrest was unlawful must fail.

25. In regard to the plaintiff’s claim that his detention was unlawful, I am equally of the opinion that this claim must fail for the reason that his detention at Boroko Police station, was following his arrest which was executed in accordance with the dictates of s.14, s.17 and s.18 of the Arrest Act, 1977. His subsequent detention and remand at Bomana CIS, was also done under the due process of the Committal Court which ordered him to be remanded at Bomana CIS to be further dealt with under the law. In the absence of any evidence to the contrary by the plaintiff, I adhere to the rule regarding presumption of regularity that the plaintiff’s detention at Bomana CIS was by order of the Committal or the District Court which first heard his case for mention, then remanded him in custody for him to be further dealt with under the committal process. In other words, I must presume that things were done right or regularly done: "omnia praesumuntor rite essa acta". See, Rahonamo v. Enai (re Hitau) [1971-72] PNGLR 58, in which Clarkson J., when discussing this rule at 66 said:

"The presumption on which the Crown relies on is as expressed by Brewer J in Knox County v. National Bank [1893] USSC 8; (1892) 147 US 91, 97; [1893] USSC 8; 37 Law Ed. 93 as quoted by Griffin CH in McLean Bros & Rigg Ltd v. Grise [1906] HCA 1; (1960) 4 CLR 835, 850:

"It is a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the latter carries with it a presumption of the due performance of the prior act."

It may well be difficult in any particular case to say whether the factual situation justifies the presumption. After all, it is common experience that not all things are done legally. But we are not dealing with some inflexible rule of law, but merely with a presumption which if justified places some evidential burden on the party against whom the presumption operates."

26. See, also NCDIC v. Crusoe P/L [1993] PNGLR 139 at 153 per Brunton J. The plaintiff’s detention at Boroko Police station and Bomana CIS were therefore authorized by law, including s.42 (1) (d) and (3) of the Constitution.

27. In his supporting affidavit, in paragraphs 6, 7, 8, and 9, the plaintiff relates to his arrest and detention, and says; that he was arrested on 11 August, 2006 on "suspicion/complaint" that he stole vanilla beans in the course of handling them; that he was detained at Boroko Police station on 11 August, 2006; that on 12 August, 2006, he was taken to Bomana CIS where he was remanded for eighteen weeks; that he was released on 15 February, 2004, on K2,000.00 cash bail; that he was arrested and charged despite his continuous and persistent denial of the charge; that while on remand, at the Bomana CIS he appeared at Waigani Committal Court seventeen times: that in each of those seventeen times the matter was adjourned because the police were not ready; that he was mentally distressed and emotionally unstable; that after his release on bail, he appeared five more times at the Waigani Committal Court; that when the police were not ready on 26 February, 2004, when the matter came before the Waigani Committal Court, the case was dismissed upon his application; that he strongly felt and believed that he was innocent and the police had fabricated evidence against him because there were several other Air Niugini employees, most of whom were from East Sepik, where he comes from, who were arrested and charged for the same offence and because he was also employed by Air Niugini, the police thought he was also involved in the robbery.

28. It is quite plain that none of what the plaintiff deposed here can prove that his detention was illegal or unlawful. Most of these are assumptions and none of them has probative value to prove his claims.

29. I have already said that s. 42(3) (b) of the Constitution empowers the police to arrest on reasonable suspicion. But there is also no basis on which the plaintiff says in his affidavit that the police arrested him on mere suspicion. For instance, had the police told him during interview or at the time of his arrest that he was being arrested because he was from East Sepik and that he was an employee of Air Niugini, then such material would provide the basis for him to say that police arrested him on mere suspicion. There are no such material facts to support his claim.

30. I also find that the matters pleaded in paragraph 10 of the Statement of Claim as particulars of unlawful detention are not materially relevant to the issue of whether his detention was lawful, thus the plaintiff cannot rely on them to prove or establish damages for unlawful detention. Again even if they bear some relevance to the issue, in my opinion they do not sufficiently plead the issue.

31. For these reasons, the claim by the plaintiff that his detention was unlawful must also fail.

32. It is relevant to note that the plaintiff has not raised false imprisonment, but I think the omission was deliberate, because it is quite plain from the facts that the plaintiff would have had difficulties proving such claim as it is not a matter that could arise from the facts.

33. False imprisonment, unlawful arrest and unlawful detention are entwined, thus false imprisonment would inevitably arise in an unlawful arrest and detention situation. This position is illustrated by a number of decided cases where it was held that an arrest which is not according to law would amount to or constitute false imprisonment. See The State v. Songke Mai & Gai Avi (supra); John Savarao v. Lau Soran & Ors [1997] PNGLR 14; Pawa Kombea v. Semel Peke (supra); Mahira Ignote v. Abraham Hualupmomi & The State [1996] PNGLR 308. The point was made plain in Regina v. Kakius-Isiura [1964] PNGLR 84 where Minogue J (as he then was) at p. 89 said:

"...An unlawful arrest is technically a ‘false imprisonment’, which is both a tort, giving an action for damages against the officer, and a common-law misdemeanour. The damages awarded may be punitive, that is to say more than are necessary to compensate the plaintiff, in recognition of the fact that his constitutional right to freedom has been invaded..."

34. These observations were echoed by Ramage AJ; in David Wari Kofowei v. Augustine Siviri & Ors (supra), where his Honour said:

"The tort of false imprisonment is derived from the action of trespass and consists in the act of arresting or imprisoning any person without lawful justification and preventing him from exercising his right of leaving the place where he is. It may also be committed by continuing a lawful imprisonment longer than justifiable: Mee v. Cruickshank (1902) 86 L.T 708. Failure to observe statutory provisions governing the holding of a person arrested even after a lawful arrest will render unlawful his subsequent detention...Each case must depend on its own circumstances and I have no hesitation in reaching the view that the holding of the plaintiff in defiance of the provisions of s. 18 (1) (e) of the Arrest Act until the morning of 6 July clearly amounted to false imprisonment".

35. The facts and circumstances of this case not giving rise to false imprisonment is consistent with the conclusion I have reached that the plaintiff’s arrest and detention were lawful.

36. I turn now to the issue of malicious prosecution. Because this action is not defended, the Court does not have the benefit of the defendants’ side of the story on why there were twenty two Committal Court appearances by the plaintiff without the police being ready with the case and why there was such a delay and why the case was dismissed. The plaintiff deposed to these matters in his supporting affidavit. I find no reason why I should reject them.

37. In my opinion, the question of whether there was malice in the prosecution of the plaintiff in the circumstances of this case is a matter of inference to be drawn from the facts.

38. Ordinarily, where an accused person is properly dealt with under the due process of the law after being arrested and charged for an offence by the police, no claim for malicious prosecution can arise. See, Justin Tkatchenko v. National Capital District Commission & The State (2007) N2196. But where court processes are abused and manipulated in the prosecution of the accused person then that should provide the basis for claim for malicious prosecution. In this regard I note and adopt the observations made by Mile, J in Milan Chapek v. The Yacht "Freja" (No.2) [1980] PNGLR 161 where his Honour said, malice may be in the sense of gross negligence or improper motive towards the plaintiff. It was also said there that, improper motive may arise in a case where an arrest is wrongful. Whereas in a case of gross negligence, malice may arise when proper procedures are not followed or neglected. The latter point was highlighted in Mahera Ignote v. Abraham Hualupmomi (supra), where Akuram A/J (as he then was) at p. 315 said:

"Malicious prosecution presupposes that proper procedural formalities have not been carried out."

39. Applying these principles to the present case, malicious prosecution cannot arise from the arrest or detention of the accused for reasons I have already given. I have also found that his arrest and detention were lawful. However, malice can still arise or be inferred from the facts. Thus in this instance, I am of the opinion that malice can be inferred from the twenty two times the plaintiff was caused to appear at the Waigani Committal Court without the police being ready with the case. As I said, I accept the plaintiff’s claim that he appeared that number of times at the Waigani Committal Court and the police were not ready in each of those times, which eventually led to the case being dismissed for lack of evidence. I also accept that the matter took that long before it was dismissed upon an application being made by the plaintiff. In those circumstances, there is no doubt in my mind that the plaintiff suffered injustice and inconvenience as a result. These are factors which are relevant to the claim for malicious prosecution. See, Piu Nui v. Senior Sergeant Mas Tanda N2765.

40. There is evidence from the plaintiff that in each of the twenty two occasions he appeared at the Waigani Committal Court, the matter got adjourned at the request of the police because they were not ready. This was a clear abuse of process and amounted to gross negligence by the police. The police also failed to prosecute the plaintiff’s case diligently.

41. If the police were not ready with their case, say, because of insufficient evidence collected, they should have withdrawn the case. In Milan Chapek v. The Yacht (supra), the court said abuse of process may also constitute malice. Thus, the only inescapable conclusion I can draw is that there was serious abuse of process and gross negligence by the police. In this regard, paragraph 10(4) of the Statement of Claim bears some relevance, in that the matter was not prosecuted within a reasonable time by the police, thus constituting negligence on their part. It follows that plaintiff is entitled to damages for malicious prosecution.

42. What then is the quantum of damages for the plaintiff? In deciding this question, I find Lucas Roika v. Peter Wama and Ors N137 and Pawa Kombea v. Semal Peke [1994] PNGLR 572 to be of assistance.

43. In Lucas Roika v. Peter Wama and Ors (supra), the plaintiff who was the premier of the Western Highlands Province was charged with misappropriating K2, 200.00. On 4 August, 1993, the Public Prosecutor filed a nollie prosequi, resulting in his discharge from the indictment. In February, 1994, the plaintiff was charged with the same offence. Sometime later, the Public Prosecutor filed a nollie prosequi stating the same reasons he gave for filing the first nollie prosequi. The plaintiff claimed damages for malicious prosecution. The Court awarded K9, 000.00 to the plaintiff in damages.

44. In Pawa Kombea v. Semal Peke (supra), the plaintiff was a member of the Southern Highlands Provincial Assembly. He was educated up to Grade 8 and was once a Corporal in the PNG Defence Force. After he left the army, he worked as a clerk in-charge of the then Papua New Guinea Banking Corporation agency in Ialibu. He also served as a Chairman for the Ialibu District Sub-Committee of the Constitutional Planning Committee until independence in September, 1975. He also served as President of the Ialibu Basin Association from 1972 to 1980. This Association served the interests of the local people in Ialibu District, in timber and forestry development projects. The Association also served as a lobby group to get the government to provide educational and health services in the local communities of Ialibu. H also took active part in tourism and cultural promotions in his area. He was given an imperial award of an MBE for his services to Provincial Government and to communities. It can be seen from this that he was a person of very high status.

45. The plaintiff in that case was arrested, charged and remanded in custody by the police on 1 November, 1991, on the basis of the false allegations made by the defendant that he (the plaintiff) had abducted and raped a girl he (the plaintiff) had befriended for some time and in whom the defendant also had interest. The police refused bail. The plaintiff attended committal proceedings on eight occasions. On each of those occasions, the matter was adjourned because the police were not ready. On 23 October, 1992, the case was struck out for lack of evidence.

46. The plaintiff’s arrest and detention were published in the Post Courier. On 6 November, 1992, after the plaintiff’s release from custody, the defendant caused a summons to be served on the plaintiff claiming K10, 000.00 as his costs for searching for the girl. That claim was eventually dismissed on 15 June, 1993. The plaintiff was awarded K15, 000.00 for malicious prosecution besides other damages.

47. In this case, the plaintiff is educated person and made seventeen Committal Court appearances without the police being ready with the case, while he was in custody and further five times after his release on bail. In Pawa Kombea, the arrest and detention were clearly unlawful, not in this case. Here, malice arises as a result of negligence, lack of compliance with proper procedures and abuse of court’s processes by the police. Damages in these types of cases are difficult to determine because they cannot be determined with precise mathematical calculations. Thus in determining damages, they have to be measured by what is fair and equitable in the circumstances of the particular case.

48. Thus, taking into account all the factors discussed above, I consider K12, 000.00 to be a fair and just award in damages for malicious prosecution. I therefore award this amount.

2. Special Damages.

49. Under this head, the plaintiff has claimed for loss of wages as a consequential loss. The claim is for the period from the date of his termination from his employment to the date of trial. For this claim, the plaintiff has placed reliance on Lucy v Commonwealth [1923] HCA 32; (1923) 33 CLR 229, where Stark J, in his judgment at 255 said:

"...the plaintiff is entitled to recover the estimated pecuniary loss resulting, as a reasonable and probable consequence from his dismissal, including any salary of which he was deprived by reason of his dismissal and the value of another benefit, for example increments, to which he was or might be have been entitled by virtue of his contract of service and of which he was deprived by reason of his dismissal; subject, however, to a deduction in respect of any sum paid to him in respect of his removal and to any allowance by reason of the probability of his obtaining other employment, elsewhere and the possibility of his achievements."

50. In his submissions, the plaintiff has put his loss at K18, 000.00. However, for this claim, I have come to a firm view that, the plaintiff is not entitled to the relief he is seeking. First, because as I have found, the plaintiff’s arrest and detention were lawful as they were effected by the police in the execution of their lawful duties and in accordance with the due process of the law. This precludes any consequential losses from arising for the plaintiff. He can only claim loss of wages against the defendants if such loss was a direct consequence of unlawful actions against him by the defendants. See, for instance, Alex Latham & Cathleen Maree Latham [1977] PNGLR 435. In that case, the plaintiffs, a husband and a wife, were assaulted by the defendant for no apparent reason. The plaintiffs received medical treatment and lost wages from work. Plaintiffs were awarded damages for loss of wages as their consequential loss. In that case, it is clear that the plaintiffs suffered loss of wages as a direct consequence of being assaulted by the defendant. This case is different. The plaintiff’s loss of wages in this case was a direct consequence of the decision by his employer to terminate him from his employment. That decision was independently made by Air Niugini for reasons known only to it as plaintiff’s employer. The defendants were not part of that decision. The claim for loss of wages is therefore too remote to hold the defendants liable. Furthermore, termination from his employment was not something the defendants could have anticipated. See, Enga Enterprises Pty Ltd –v- Danny Porakali N1359 and Kinsim Buisness Group Inc. v. Joseph Hompwafi [1997] PNGLR 111.

51. The case of Lucy v. Commonwealth (supra), is also distinguishable for the same reason that the case involved unlawful termination of plaintiff’s services by the Commonwealth. The High Court of Australia held that the measure of damages was the same as that in an action for wrongful dismissal. The High Court held that the plaintiff was entitled to claim her lost wages, which was a direct consequence of the termination of his contract of service. Such relief is not open to the plaintiff from the facts of this case. If the claim was against his former employer then it would be properly grounded.

52. It follows that the claim for consequential loss must also fail.

3. Exemplary damages.
   

53. Claims under this head of damages would include aggravated damages, but the amount awarded would constitute the award for exemplary damages. See, Trevor Yasken & Ors v. Walyia Abilo & Ors N3108. Thus, the claims would include breach of constitutional rights. But apart from the failure by the plaintiff to plead particulars of the types of constitutional rights that were breached, I am of the firm opinion that such issue does not arise because these claims can only be grounded on wrongful arrest and detention and false imprisonment. I have already found that the plaintiff’s arrest and detention were lawful and as to false imprisonment, the plaintiff has not pleaded it.

54. In the circumstances, the amount awarded for malicious prosecution is sufficient compensation for the plaintiff.

55. It follows that claim for exemplary damages must also fail.

56. The plaintiff has also claimed for mental anguish and emotional distress. I have no doubt that he would have suffered such damage. He has claimed K1, 000.00. I award this amount.

57. The total amount awarded to the plaintiff in damages is
K13, 000. 00

Interest

58. I award interest at 8 percent from the date of the writ which is 24 February, 2007 to the date of judgment (today). That is a period of 1 year 7 months. For this, I award interest at K1, 646.69.

59. Therefore the total amount awarded to the plaintiff in damages and interest is K14,646.69.

60. The defendants will pay the plaintiff’s costs.

__________________________________________

Rageau Manua & Kikira Lawyers: Lawyers for the plaintiff
Solicitor General: Lawyers for the defendants